The challenge in this appeal is to
the judgment of the learned Single Judge of Kerala High Court dismissing
the appeal filed by the appellant, while directing the acquittal of the
co-accused. Both the accused were convicted by the learned IInd
Additional Assistant Sessions Judge, Thrissur for offences punishable
under Sections 366A and 376 read with Section 34 of the Indian Penal
Code, 1860 (in short 'IPC').

3. Custodial sentence of two years
and fine of Rs.10,000/- with default stipulation, sentences of three
years and fine of Rs.3,000/-were with default stipulation for the
offences punishable under Sections 376 and 366A read with Section 34 IPC
respectively.

4. The background facts, as
projected by prosecution in nutshell are as follows:
On 18.10.1993 at 7.00 a.m. both the accused, in furtherance of their
common intention of kidnapping, induced and procured a minor teenage
girl (P.W.2), who had not attained the age of 14 and seduced her to have
illicit intercourse with the first accused and first accused took her to
Mahadevapuram in Coimbatore District and committed rape in the house of
CW8 at Mahadevapuram. Since PW2 did not come back to her house, after
making necessary enquiries, PW1, father of PW2, went to Cheruthuruthy
Police Station and lodged first information statement and originally
man-missing case was registered as Crime No.96 of 1993. The girl was not
found out. Finally, a criminal M.C. was filed before the High Court and
on the basis of the direction of the High Court, the Circle Inspector of
Police found out PW2 and subsequently arrested the accused, continued
the investigation and charge was laid. The girl was produced before the
Judicial First Class Magistrate's Court, Wadakkancherry on 30.11.1993
and it was recorded that she had stated to the Magistrate that she was
studying in ninth standard and she was staying with her father. She was
taken from the tuition center while she was going to Akshaya Tuition
Centre, Ceruthuruthy.

She stated that she went with Iqbal,
appellant and first accused, on her own will to Coimbatore on 18.10.1993
from Akshaya Tuition Centre. They were friends. Friend of first accused,
namely, Sasi was also with them. They changed the vehicles and finally
second accused, Sasi did not accompany them till Coimbatore. She also
stated that she had intercourse with Iqbal, first accused, at Coimbatore
and not with any other persons, that she was aged thirteen years and six
months at that time and she was with Iqbal till she was produced before
the Court. Statement under Section 161 of the Code of Criminal
Procedure, 1973 (in short 'Cr.P.C.') given by her to the police was also
more or less on the same lines. But, before the Court, she deposed in
examination-in-Chief that she and her friend PW4 went to the tuition
center and an autorikshaw came there. From the autorikshaw, A2 Sasi and
A1 Iqbal, got down and A1 told her to get into the autorikshaw to tell
something and on his persuasion she got into the autorikshaw and both of
them took her to a place called Kolappully.

Thereafter, A2 brought a car and
they went upto Palakkad and A2 Sasi left. From there, they went to
Coimbatore by bus. They took food and A1 took her to a hotel and forced
her for intercourse and thereafter they went to cinema etc. Thereafter,
they came to the house of CW8 and they were staying in that house.
During cross-examination main endeavour of the accused was to show that
she came with him on her own will. Letters written by PW2, Exts. D1 to
D3, were also produced and marked to show that PW2 and A1 were in love
and that was not allowed by the parents. Further, in cross examination,
he asked specifically whether she agreed for intercourse willingly to
show that intercourse was committed with consent. Evidence of PW4 also
supports the evidence of PW2. Evidence of PWs 8 and 9 doctors show that
she had intercourse. Evidence shows that she went with her own will and
intercourse also was done voluntarily and not by force. It is clear from
the evidence that they were in love and wanted to marry, but parents of
PW2 objected. Hence, they together eloped and there is no kidnapping.
School certificate as well as the deposition of father of PW2 shows that
she was aged only 13 years and nine months at the time of incident.
Hence, consent cannot be taken as valid.

5. Placing reliance on evidence of
PW2, who is the victim, the learned Trial Court found both the accused
persons guilty and sentenced them as aforesaid. In appeal, the High
Court by the impugned judgment, noted that the charges have been
established so far as the appellant is concerned, while directing the
co-acquittal of the co-accused.

6. In support of the appeal, learned
counsel for the appellant submitted that the evidence of the victim PW2
clearly shows that she was in love with the appellant and had gone with
him on her own will. Letters (Ex. D1 to D3) clearly established this
fact. It was further submitted that the evidence of PW2 indicated that
though victim and appellant were in love, the parents objected to it. It
is also pointed out that in the cross-examination she had admitted that
she had sexual intercourse with the appellant on her own free will and
consent and there was no force used. The High Court, however, found that
girl victim was aged about 13 years and 9 months and, therefore, the
consent was of no consequence so far as allegation of rape is concerned.
The conviction as recorded by the Trial Court was affirmed. However, on
special circumstances which had weighed, the High Court imposed the
sentence below the prescribed minimum, reduced the sentence to three
years rigorous imprisonment and fine of Rs.10,000/- in respect of the
offence punishable under Section 376 IPC. However, his conviction and
sentence relating to Section 366A was affirmed. The sentences imposed
were directed to run concurrently. As noted above, the stand of the
appellant was that there was no rape involved and in any view, Section
366A has no application.

7. So far as the legality of
conviction for offence punishable under Section 376 IPC is concerned,
Section 375 IPC needs to be noted. The same reads as follows:

375. Rape.- A man is said to commit
"rape" who, except in the cases hereinafter excepted, has sexual
intercourse with a woman under circumstances falling under any of the
six exceptions:-
First Against her will.

Secondly- Without her consent.

Thirdly- With her consent, when her
consent has been obtained by putting her on any person in whom she is
interested in fear of death or of hurt.

Fourthly - With her consent, when
the man knows he is not her husband, and that her consent is given
because she believed that he is another man to whom she is or believed
herself to be lawfully married.

Fifthly With her consent, when, at
the time of giving such consent, by reason of unsoundness of mind or
intoxication or the administration by him personally or through another
of any stupefying or unwholesome the nature and consequences of that to
which she gives consent.

Sixthly with or without her consent,
when she is under sixteen years of age. "

8. Clause 'sixthly' clearly
stipulates that sexual intercourse with a woman with her or without her
consent when she is under 16 years of age, amounts to rape. The evidence
on record clearly establishes that the victim was less than 16 years of
age and, therefore, the conviction for offences punishable under Section
376 IPC cannot be faulted.

9. The residual question is of
applicability of Section 366A IPC. In order to attract Section 366A IPC,
essential ingredients are (1) that the accused induced a girl; (2) that
the person induced was a girl under the age of eighteen years; (3) that
the accused has induced her with intent that she may be or knowing that
it is likely that she will be forced or seduced to illicit intercourse;
(4) such intercourse must be with a person other than the accused; (5)
that the inducement caused the girl to go from any place or to do any
act.

10. In the instant case, the
admitted case of the prosecution is that girl had left in the company of
the accused of her own will and that she was not forced to sexual
intercourse with any person other than the accused. The admitted case is
that she had sexual intercourse with the accused for which, considering
her age, conviction under Section 376 IPC has been maintained. Since the
essential ingredient that the intercourse must be with a person other
than the accused has not been established, Section 366A has no
application.

11. In the result, the conviction
for offence punishable under Section 366A IPC is set aside while the
conviction and sentence imposed in respect of offence punishable under
Section 376 IPC is maintained.